Exhibit 10.3
EXECUTION COPY
AMENDMENT NO. 8
TO AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT
THIS AMENDMENT NO. 8 TO AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT,
dated as of February 16, 2007 (the "Agreement") relating to the Credit Agreement
referenced below, is by and among WOLVERINE TUBE, INC., a Delaware corporation
(the "Company"), certain of its Subsidiaries identified as Subsidiary Borrowers
on the signature pages hereto and any additional Subsidiaries of the Company
which become parties to the Credit Agreement in accordance with the terms
thereof (collectively referred to as the "Subsidiary Borrowers" and individually
referred to as a "Subsidiary Borrower") (hereinafter, the Company and the
Subsidiary Borrowers are collectively referred to as the "Borrowers" or referred
to individually as a "Borrower"), each of the financial institutions identified
as Lenders on the signature pages hereto (the "Lenders" and each individually, a
"Lender"), and WACHOVIA BANK, NATIONAL ASSOCIATION, ("Wachovia"), acting in the
manner and to the extent described in Article XIII of the Credit Agreement (in
such capacity, the "Administrative Agent"). Terms used but not otherwise defined
herein shall have the meanings provided in the Credit Agreement and the
provisions of Sections 1.2 and 1.3 of the Credit Agreement related to the
definitions shall apply herein.
W I T N E S S E T H
WHEREAS, a $35,000,000 credit facility has been extended to the Borrowers
pursuant to the terms of that certain Amended and Restated Credit Agreement
dated as of April 28, 2005 (as amended, modified or otherwise supplemented from
time to time, the "Credit Agreement") among the Borrowers, the Lenders, and the
Administrative Agent;
WHEREAS, the Borrowers have requested that certain amendments be made to
the Credit Agreement and to the Security Agreement as contemplated herein and
the Lenders agree to amend such provisions pursuant to the terms and conditions
herein; and
WHEREAS, the undersigned Lenders have agreed to amend the Credit Agreement
as set forth herein;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
(A) Amendments.
1. Section 1.1 of the Credit Agreement is hereby amended by adding
the following new definitions in the appropriate alphabetical order:
"HSBC" has the meaning set forth in the definition of Consignment
Agreement herein.
"Consignment Letter of Credit" means a Letter of Credit issued
hereunder pursuant to the Consignment Agreement.
2. Each of the following definitions in Section 1.1 of the Credit
Agreement is hereby deleted and replaced with the following definitions:
"Cash Dominion Period" means (i) any period beginning on the date
an Event of Default shall have occurred (beyond the expiration of the
applicable grace or cure period) and continuing until such Event of
Default has been waived by the Required Lenders or (ii) any period
beginning on the date on which the Obligations outstanding shall equal
or exceed $25,000,000 and continuing until the termination of this
Credit Agreement and the repayment in full of all Obligations
hereunder.
"Consignment Agreement" means the Consignment Agreement, dated as
of February 16, 2007, by and between HSBC Bank USA, National
Association, a bank organized under the laws of the United States with
offices located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("HSBC"), the Company, and Wolverine Joining Technologies, LLC, as
amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof.
3. The definition of Borrowing Base in Section 1.1 of the Credit
Agreement is hereby amended by adding the following sentence to the end
thereof:
It is understood and agreed that the Agent shall reserve against the
Borrowing Base an amount equal to 105% of the maximum amount that was
available to be drawn under any expired or terminated Consignment
Letter of Credit until the 91st day following the expiration date or
termination thereof or, if earlier, the date on which such Consignment
Letter of Credit has been cash collateralized in accordance with
Section 2.8 hereof.
4. The definition of Eligible Inventory in Section 1.1 of the Credit
Agreement is hereby amended by adding the following sentence to the end
thereof:
For the avoidance of doubt, notwithstanding the foregoing to the
contrary, Eligible Inventory shall not include any silver or inventory
or products containing silver.
5. Section 2.2(a) of the Credit Agreement is hereby amended by
deleting the amount "$18,000,000" from clause (i) of the first proviso
thereof and replacing it with
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"$24,000,000" and by replacing the antepenultimate sentence thereof in its
entirety with the following sentence:
Except as otherwise expressly agreed upon by all the Lenders, no
Letter of Credit shall have an original expiry date more than one year
from the date of issuance, or as extended, shall have an expiry date
extending beyond the Maturity Date, except that prior to the Maturity
Date, a Letter of Credit (other than a Consignment Letter of Credit)
may be issued or extended with an expiry date extending beyond the
Maturity Date, if and to the extent that the Borrowers shall provide
cash collateral to the Issuing Lender on the Maturity Date in an
amount equal to 105% of the maximum amount available to be drawn under
such Letter of Credit and the Required Lenders or the Issuing Lender
shall not otherwise object.
6. Section 2.8 of the Credit Agreement is hereby deleted and
replaced with the following:
The obligation of the Lenders to make Revolving Loans and to issue
Letters of Credit shall expire at the Administrative Agent's close of
business in Charlotte, North Carolina on the Maturity Date, or such
earlier date if the Commitments are terminated pursuant to Section
11.2. On the Maturity Date, the entire outstanding principal balance
of all amounts outstanding under the Revolving Loan Commitment,
together with accrued but unpaid interest and all other sums owing
under this Agreement, shall be due and payable in full, unless
accelerated sooner pursuant to Section 11.2. With respect to all
Letters of Credit outstanding on the Maturity Date (or such earlier
date if the Commitments are terminated pursuant to Section 11.2), if
any, and any Consignment Letter of Credit that has expired or
terminated within 90 days prior to the Maturity Date, the Credit
Parties will immediately pay to the Administrative Agent sufficient
cash, to be held by the Administrative Agent, for the benefit of the
Lenders, in a cash collateral account as security for the LOC
Obligations in respect of subsequent drawings under (a) all then
outstanding Letters of Credit in an aggregate amount equal to 105% of
the maximum aggregate amount which may be drawn under all Letters of
Credits then outstanding and (b) each such expired or terminated
Consignment Letter of Credit in an aggregate amount equal to 105% of
the maximum aggregate amount which was available to be drawn under
each such Consignment Letter of Credit. Accrued interest on the cash
collateral account shall be for the account of the Borrowers, subject
to the prior payment in full in cash of all of the Obligations. With
respect to any Letter of Credit for which cash collateral is required
pursuant to this Section 2.8, the cash collateral for any such Letter
of Credit shall be retained by the Administrative Agent until (i) such
Letter of Credit shall have expired or shall have been terminated and
returned undrawn to the Administrative Agent (and in any case cannot
be, or has not been, further extended or reinstated in accordance with
its terms or otherwise), and (ii) all LOC Obligations in connection
therewith have been paid in full in cash.
7. Section 8.1 of the Credit Agreement is hereby amended by deleting
the
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amount "$18,000,000" therefrom and replacing it with "$25,000,000".
8. All references to BANA and BAPM in the Credit Agreement are
hereby deleted.
9. Each of the Schedules attached to the Credit Agreement is hereby
deleted and replaced by the corresponding Schedule attached to this
Agreement.
(B) Consents. The Company has requested that the Agent and the Lenders
consent to the Company and Wolverine Joining Technologies, LLC entering into the
Consignment Agreement and the related sale of silver to HSBC contemplated
therein (the "Consignment Transactions"). The Agent and the Lenders hereby
consent to the Company and Wolverine Joining Technologies, LLC entering into the
Consignment Transactions notwithstanding the provisions of Sections 9.1 and 9.5
of the Credit Agreement and the Agent hereby releases its lien on and security
interest in the silver sold to HSBC in accordance with the Consignment Agreement
and described in the Xxxx of Sale between the Company and Wolverine Joining
Technologies, LLC, as sellers, and HSBC, as purchaser, a copy of which Xxxx of
Sale in final form is attached hereto.
(C) Representations and Warranties. Each Credit Party hereby represents
and warrants that (i) the representations and warranties contained in Article VI
of the Credit Agreement are true and correct in all material respects on and as
of the date hereof as though made on and as of such date (except for those
representations and warranties which by their terms relate solely to an earlier
date) and after giving effect to the transactions contemplated herein, (ii) no
Default or Event of Default exists under the Credit Agreement on and as of the
date hereof and after giving effect to the transactions contemplated herein,
(iii) it has the corporate, limited liability company or limited partnership
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder and has taken all necessary organizational action to
authorize the execution, delivery and performance by it of this Agreement; (iv)
it has duly executed and delivered this Agreement, and this Agreement
constitutes its legal, valid and binding obligation enforceable in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or other similar laws affecting the rights of creditors
generally or by general principles of equity and (v) neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated therein, nor performance of and compliance with the terms and
provisions thereof will violate or conflict in any material respect with any
material provision of its articles or certificate of incorporation or
certificate of limited partnership or certificate of formation, bylaws,
agreement of limited partnership or limited liability company agreement or
violate, contravene or conflict in any material respect with contractual
provisions of, or cause an event of default under, any indenture, including
without limitation the 2008 Senior Note Indenture and 2009 Senior Note
Indenture, loan agreement, mortgage, deed of trust, contract or other agreement
or instrument to which it is a party or by which it may be bound.
(D) Effectiveness. This Agreement shall become effective upon satisfaction
of all of the following conditions precedent:
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1. Executed Agreement. The Administrative Agent shall have received
a fully executed counterpart of this Agreement from each party hereto.
2. Consignment Agreement and Letter of Credit. The Administrative
Agent shall have received a fully executed copy of the Consignment
Agreement, which agreement shall be in full force and effect and not
subject to any unsatisfied conditions precedent. The Administrative Agent
shall have received and approved the final form of the letter of credit
attached to the Consignment Agreement.
3. Permitted Securitization Amendments. The Administrative Agent
shall have received original fully executed copies of Amendment No. 3 to
the Amended and Restated Receivables Purchase Agreement, which agreement
shall be in full force and effect and not subject to any unsatisfied
conditions precedent, and to which the Administrative Agent and the Lenders
hereby consent.
4. Amendment Fee. The Administrative Agent shall have received from
the Borrowers an amendment fee of $5,000 in connection with this Agreement.
5. Other Conditions Precedent. The Borrowers shall have completed
all proceedings taken in connection with the transactions contemplated by
this Agreement and delivered to the Administrative Agent all other
documentation and other items incident thereto, and each shall be
satisfactory to the Administrative Agent and its legal counsel, Mayer,
Brown, Xxxx & Maw, LLP.
(E) No Other Modification. Except to the extent specifically provided to
the contrary in this Agreement, all terms and conditions of the Credit Agreement
(including Exhibits and Schedules thereto) and the other Credit Documents shall
remain in full force and effect, without modification or limitation. This
Agreement shall not operate as a consent to any other action or inaction by the
Borrowers or any other Credit Party, or as a waiver or amendment of any right,
power, or remedy of any Lender or the Administrative Agent under the Credit
Agreement or any other Credit Document nor constitute a consent to any such
action or inaction, or a waiver or amendment of any provision contained in the
Credit Agreement or any other Credit Document except as specifically provided
herein. Each of the Credit Parties acknowledges, confirms and agrees that the
Credit Documents to which it is a party remain in full force and effect as of
the date hereof and continue to secure all Obligations of each such Credit Party
to any Lender or the Administrative Agent, and novation of any kind is hereby
expressly disclaimed.
(F) Release. In consideration of entering into this Agreement, each Credit
Party (a) represents and warrants to the Administrative Agent and each Lender
that as of the date hereof there are no causes of action, claims, actions,
proceedings, judgments, suits, demands, damages or offsets against or defenses
or counterclaims to its Obligations or Secured Obligations under the Credit
Documents and furthermore, such Credit Party waives any and all such causes of
action, claims, actions, proceedings, judgments, suits, demands, damages,
offsets, defenses or counterclaims whether known or unknown, arising prior to
the date of this Agreement and (b) releases the Administrative Agent and each
Lender and each of their respective Affiliates,
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Subsidiaries, officers, employees, representatives, agents, counsel and
directors from any and all actions, causes of action, claims, actions,
proceedings, judgments, suits, demands, damages and liabilities of whatever kind
or nature, in law or in equity, now known or unknown, suspected or unsuspected
to the extent that any of the foregoing arises from any action or failure to act
with respect to any Credit Document, on or prior to the date hereof.
(G) Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of North Carolina, without
regard to the principles governing conflicts of laws thereof.
(H) INCORPORATION BY REFERENCE OF CERTAIN PROVISIONS. THE PROVISIONS IN
SECTIONS 14.5, 14.6, 14.8, 14.9, 14.10, 14.12, 14.13, 14.14, 14.15, 14.19 AND
14.24 OF THE CREDIT AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE HEREIN,
MUTATIS MUTANDIS.
(I) Payment of Expenses. Each of the Borrowers agrees, jointly and
severally, to pay all costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this Agreement and
all other related matters pertaining hereto and to the Credit Agreement,
including, without limitation, the reasonable fees and expenses of Mayer, Brown,
Xxxx & Maw LLP.
[SIGNATURE PAGES FOLLOW]
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Each of the parties hereto has caused a counterpart of this Agreement to be
duly executed and delivered as of the date first above written.
COMPANY:
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WOLVERINE TUBE, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Sr. Vice President & CFO
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SUBSIDIARY BORROWERS:
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TF INVESTOR, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Sr. Vice President & Treasurer
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TUBE FORMING HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
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Title: Sr. Vice President & Treasurer
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TUBE FORMING, L.P.
By: Tube Forming Holdings, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
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Title: Sr. Vice President & Treasurer
---------------------------------
Wolverine Tube, Inc.
Amendment No. 7
WOLVERINE FINANCE, LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Sr. Vice President & Treasurer
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SMALL TUBE MANUFACTURING, LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Sr. Vice President & Treasurer
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WOLVERINE JOINING TECHNOLOGIES, LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Sr. Vice President & Treasurer
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WOLVERINE CHINA INVESTMENTS, LLC
By: Wolverine Tube, Inc.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Sr. Vice President & CFO
---------------------------------
WT HOLDING COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President & Treasurer
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Wolverine Tube, Inc.
Amendment No. 7
AGENT AND LENDERS:
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WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity
as Administrative Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
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Title: Director
--------------------------------------
(signature pages end)
Wolverine Tube, Inc.
Amendment No. 7
